The High Court has awarded the plaintiff costs on the Circuit Court scale, with a certificate for senior counsel, after he succeeded in a trespass action over a strip of land at his premises in Malahide, County Dublin. It refused the defendants’ application for a costs order against him under section 17(5) of the Courts Act 1981.
The underlying action concerned a grass margin beside a public highway. The court had found that the defendants trespassed by constructing a footpath there and had assessed damages at €10,000. The plaintiff then sought the costs of the proceedings, including costs relating to the defendants’ counterclaim for substantial damages.
The defendants argued that the claim should have been brought in the Circuit Court, which had jurisdiction to award the damages ultimately granted. They sought an order under section 17(5), which allows a court in certain circumstances to require a successful plaintiff to pay the defendant an amount related to additional costs arising because the case was brought in a higher court.
The plaintiff relied on uncertainty at the time about the Circuit Court’s jurisdiction over claims involving land without a rateable valuation. The judgment recounts conflicting High Court decisions on that issue and notes that the Supreme Court resolved it in Permanent TSB v Langan and the Attorney General in 2017. The court said the Circuit Court was the appropriate jurisdiction for this claim, but that the legal controversy was live when the plaintiff began the proceedings and continued through the hearing. Neither party had applied to remit the case to the Circuit Court.
The judge concluded that the plaintiff should receive costs on the Circuit Court scale, with a certificate for senior counsel. He declined to order the plaintiff to pay the defendants’ costs under section 17(5). He considered the surrounding legal uncertainty and found no feature of the case that made such an order fair. He also noted that the plaintiff had proved his substantive right to title and ownership of the land margin, the main focus of the evidence and legal submissions. The ruling concerned costs following the successful action; it did not revisit the underlying trespass finding or damages award.